Citation Nr: 21021779 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 10-04 526 DATE: April 14, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to a separate compensable rating for disability manifesting in social isolation, claimed as due to hearing loss, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s bilateral hearing loss manifested, at worst, to Level II hearing impairment in the right ear and Level IV hearing impairment in the left ear. CONCLUSION OF LAW The criteria for assignment of a compensable initial evaluation for bilateral hearing loss, to include as on an extraschedular basis, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to November 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction over the appeal was later transferred to the RO in Albuquerque, New Mexico. In September 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer available to participate in a decision on this appeal. In March 2016, the Board notified the Veteran of his right to request a new Board hearing before a VLJ who will decide his claim. The Veteran indicated in a March 2016 response that he did not wish to appear at another Board hearing, and that he wanted his case to be considered on the evidence of record. A transcript of the September 2014 hearing is of record. As a result of contentions made by the Veteran during his September 2014 Board hearing and in a September 2015 statement, and contentions made by his mother in an April 2016 statement, the question of whether TDIU was raised as part and parcel to the rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In February 2015 and May 2016, the Board remanded the claims for further evidentiary development. In August 2017, the Board denied the claims for a higher rating for bilateral hearing loss and TDIU. Thereafter, the Veteran appealed the Board’s August 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Remand (JMR) and remanded these issues to the Board pursuant to the terms of the JMR. In November 2018, the Board remanded the claims for development in accordance with the JMR. Entitlement to an increased rating for bilateral hearing loss. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second (Hertz). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Bruce v. West, 11 Vet. App. 405, 409 (1998), quoting Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In the rating action on appeal, the AOJ granted service connection and assigned an initial noncompensable evaluation, effective April 28, 2008. The Veteran was afforded a VA examination in January 2013. The Veteran’s hearing loss was not reported to impact his ability to work. On audiological examination, pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Right Ear 30 45 60 60 Left Ear 30 45 55 55 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 94 percent in the left ear. Pure tone threshold levels averaged 49 in the right ear and 46 in the left ear. Under Table VI, when considered with the Veteran’s speech audiometry results, this corresponds to category I in the right ear and category I in the left ear. These categories correspond with a noncompensable disability rating under Table VII. In the Veteran’s February 2010 VA Form 9, he reported that the only reason his speech recognition scores were so high was because he was able to read the examiner’s lips. In September 2014, the Veteran testified at a hearing before a Veterans Law Judge that his bilateral hearing loss affected his ability to work. He reported that he had been fired twice from two jobs due to his hearing loss. He explained that he had to be able to hear his patients when they call and that a lot of times, he could not hear them, including home care clients. He reported that he did not go out socially due to his hearing loss. He also reported that he had to look at people when they spoke because it was “just a mumble.” During the hearing, the Veteran also testified that his hearing loss had worsened since the January 2013 VA examination. The Veteran submitted a private audiogram in September 2014. As discussed in the October 2014 remand, the private audiogram was handwritten and not interpreted. Further, although the Board is empowered to interpret handwritten results of pure tone threshold testing, the private audiologist did not indicate which findings were specific to which ear. Further, the audiologist did not indicate specific pure tone threshold readings at the 3000 Hertz frequency or use the Maryland CNC speech recognition test as required under 38 C.F.R. § 4.85(a) and (c). For these reasons, clarification from the September 2014 private audiologist was required. In October 2014, the Board remanded the claim for clarification from the September 2014 private audiologist; however, although multiple attempts were made, including following another remand in May 2016, clarification from the September 2014 private audiologist was not received. For these reasons, the Board places no probative value on the private audiogram. 38 C.F.R. § 4.85(a), (c). Following the October 2014 remand, the Veteran was afforded another VA examination in May 2015. The Veteran reported difficulty hearing when there was background noise, if the person speaking to him was not face to face with him or if they were speaking from a distance. On audiological examination, pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Right Ear 45 50 60 70 Left Ear 40 55 55 60 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 82 percent in the left ear. Pure tone threshold levels averaged 56 in the right ear and 53 in the left ear. Under Table VI, when considered with the Veteran’s speech audiometry results, this corresponds to category II in the right ear and category IV in the left ear. These categories correspond with a noncompensable disability rating under Table VII. During the May 2015 examination, the examiner also noted that with respect to the functional impact of the Veteran’s hearing loss, the Veteran reported difficulty hearing when there was background noise, or if the person speaking was not facing him or was speaking from a distance. The examiner also opined that the Veteran’s hearing loss in and of itself did not preclude the Veteran from gainful employment. The examiner noted that, “[t]he veteran’s hearing loss alone should not be a barrier to a wide range of employment settings. Many individuals with the veteran’s degree of hearing loss, or worse, function well in many occupational settings. This is not to say that the Veteran’s hearing loss would cause some problems depending on the vocation. He may have trouble working well in very noisy environments, and in environments which required him to often use non face-to-face communications equipment (such as speakers, intercoms, etc.).” In a September 2015 letter, the Veteran reported that, although he was a trained medical professional, he was unable to work at any medical facility due to the function of the hearing aids. He reported that he needed to wear them to hear what was going on around him and be able to respond, but the hearing aids picked up and amplified all of the constant electronic equipment sounds, cell phones, nurse response buzzer, conversations, overhead announcements, dinner carts, etc. He reported that even the sound of crumpling paper was magnified with the hearing aids. He reported that it was unbearable at times and that sometimes he would go home with headaches and then not sleep because the sounds were still ringing in his ears. He reported that his only relief at work was to remove the hearing aids but then he could not respond to calls and that caused him to lose his job twice. He also reported that he had to resort to doing personal home healthcare to continue in the field but that it was not well paying or stable. In the September 2015 letter, the Veteran also reported feeling the effects of hearing loss on his social and emotional well-being. He reported that he had been outgoing and friendly but that he now found himself avoiding crowds and social events. He explained that again, the use of hearing aids amplified all the sounds but if he did not wear them, he was not able to understand when people spoke with him unless they spoke loudly and were facing him so that he could read their lips. He also reported that he was not able to ride his mountain bike because sweat would short out his hearing aids. He reported that his only source of entertainment had become camping and fishing and he felt like he was becoming a total recluse and feeling more and more depressed. He reported that he had been talking to a VA psychologist about his feelings. In May 2016, the Board remanded the appeal again for compliance with the prior remand for records from the private audiologist, as well as another VA examination. In May 2016, a VA audiologist offered an opinion with respect to the effect, if any, of the Veteran’s hearing loss disability on his ability to work. The examiner opined that the Veteran’s hearing loss, in and of itself, does not preclude an individual from obtaining gainful employment and/or participating in social events. The examiner noted that the Veteran’s hearing loss alone should not be a barrier to a wide range of employment settings. The examiner also noted that many individuals with the Veteran’s degree of hearing loss, or worse, function well in many occupational settings. The examiner explained that this was not to say that the Veteran’s hearing loss would not cause some problems depending on the vocation. The examiner explained that the Veteran may have trouble working well in very noisy environments, and in environments which required him to often use non face-to-face communications equipment (such as speakers, intercoms, etc.). The Veteran was afforded a VA examination in August 2016. The Veteran noted that when he was working as a certified nursing assistant, he had problems differentiating different machine sensors and difficulties figuring out where the sounds were coming from. The Veteran noted that he has not been able to work full-time and that he was not as outgoing. He stated that he could not ride a bike anymore because of the wind noise he heard from the hearing aids. On audiological examination, pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 Right Ear 50 65 70 80 Left Ear 50 65 65 70 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. Pure tone threshold levels averaged 66 in the right ear and 63 in the left ear. Under Table VI, when considered with the Veteran’s speech audiometry results, this corresponds to category II in the right ear and category II in the left ear. These categories correspond with a noncompensable disability rating under Table VII. It has been established that an audiologist must provide a description of the functional effects caused by a hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The VA examinations address the functional and daily life effects of the Veteran’s hearing loss disability. The examinations discuss that the Veteran’s reported difficulty with one-on-one conversation situations, hearing from a distance, and difficulty with background noise. Therefore, throughout the appeal, the functional and ordinary daily life effects of the Veteran’s hearing loss disability have been adequately discussed. The audiometric evaluations discussed above do not reveal results warranting a compensable evaluation for bilateral hearing loss. As such, a higher initial evaluation for bilateral hearing loss is denied. The Board has also considered the Veteran’s lay statements that his hearing loss is worse than currently evaluated. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges that the Veteran has some medical knowledge as a certified nurse assistant. However, he has not shown expertise or specific training in the field of audiology. Therefore, he is not competent to identify a specific level of disability of hearing loss disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. The Board has also considered whether an extraschedular rating is warranted for the service-connected bilateral hearing loss during the relevant period on appeal, as was raised by the Veteran’s representative in a March 2016 Appellant’s Post-Remand Brief. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In accordance with the Board’s November 2018 remand directives, the AOJ referred the Veteran’s claim to the Director of Compensation Service for extraschedular consideration. In a September 2020 administrative decision, the Director denied entitlement to a compensable rating on an extraschedular basis. In the decision, the Director found that there was no factual demonstration of impairment to earning capacity based on exceptional or unusual factors for hearing loss. Because the Veteran’s claim of entitlement to a higher rating on an extraschedular basis was denied by the Director, the Board may address the merits of the Veteran’s claim for a higher rating for bilateral hearing loss, on an extraschedular basis. Wages v. McDonald, 27 Vet. App. 233, 239 (2015); see also Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Rating Schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Accordingly, the Board finds that the Veteran’s reported hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria. See also Doucette, 28 Vet. App. 366 (holding that “the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria”). The Board finds that the Veteran’s hearing loss symptomatology is fully addressed by the rating criteria under which the disability is rated. In reaching this conclusion, the Board has considered the Veteran’s statements that he has been depressed and experienced social isolation due to his bilateral hearing loss disability. The Board also acknowledges the Joint Motion noted that social isolation is not contemplated by the schedular criteria for hearing loss. While the Board agrees that social isolation is not explicitly identified as part of the rating criteria used for rating hearing loss, social impairment is in fact contemplated elsewhere in the rating schedule specifically under the General Rating Formula Mental Disorders, found at 38 C.F.R. § 4.130. Thus, if actually related to hearing loss, and manifest to a compensable degree, the Veteran may be entitled to a separate compensable rating for social isolation under the rating schedule. See Morgan v. Wilkie, 31 Vet. App. 162 (2019) (VA’s duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability before engaging in extraschedular analysis). As discussed in the Remand section below, additional evidentiary development is required before an actual rating can be awarded. Having considered the Veteran’s descriptions as to how his hearing loss affects his daily life, the Board concludes that the rating schedule is adequate to rate the impairments claimed by the Veteran to be caused by his hearing loss disability, to include social isolation. While an actual determination as to whether the Veteran’s social isolation warrants a separate schedular rating must be deferred at this time, the fact remains that the impairment itself is contemplated by the rating schedule. There is nothing exceptional or unusual about the Veteran’s disability picture that renders the schedule inadequate. Based on the evidence described above, the Board finds that the Veteran’s hearing loss disability is simply not severe enough to warrant a compensable rating, and the benefit sought on appeal must be denied. While a separate compensable rating may be warranted to compensate impairment due social isolation, the matter is remanded below for additional evidentiary development. REASONS FOR REMAND 1. Entitlement to a separate rating for a disability manifesting in social isolation, claimed as due to hearing loss. As noted above, functional impairment due to social isolation does not appear to be contemplated in the rating schedule as a symptom associated with hearing loss. However, social impairment is contemplated by the rating schedule and can be separately rated in accordance with the schedular criteria for a mental disorder under 38 C.F.R. § 4.130, provided such is present and determined to be service connected. In a recent precedential decision, the Court held that VA’s duty to maximize benefits requires it to exhaust all schedular alternatives for rating a disability before engaging in extraschedular analysis. Those schedular alternatives include granting secondary service connection for symptoms attributable to disabilities proximately caused by the disability on appeal, when raised by the claimant or reasonably raised by the record. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). In the present case, the record reflects that the Veteran has been noted to be suffering from and treated for nonservice-connected depressive disorder over the course of the period on appeal. In light of that fact, and the Court’s decision in Morgan, further development is warranted prior to final adjudication to determine whether the Veteran suffers from disability manifesting in social isolation that is either caused or aggravated by his hearing loss disability. 2. Entitlement to a TDIU. The Veteran’s claim for TDIU may be affected by the outcome of the claim for a separate compensable rating for a disability manifesting social isolation, due to hearing loss. As such, the Board finds that the claim for TDIU is inextricably intertwined with the remanded claim. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any current psychiatric disabilities. Then, with respect to each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability has been (a) caused or (b) aggravated by the Veteran’s service-connected hearing loss. In so doing, the examiner should discuss the medical significance, if any, of the fact that the Veteran has reported experiencing social avoidance and isolation as a result of his hearing difficulties. A complete medical rationale for all opinions expressed must be provided. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.